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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30587
_____________________
DOBIE GILLIS WILLIAMS
Petitioner, Appellee
v.
BURL CAIN, Warden
Respondent, Appellant.
____________________
Appeal from the United States District Court for the
Western District of Louisiana
____________________
June 16, 1998
Before JOLLY and BENAVIDES, Circuit Judges*
In this death penalty case, Burl Cain, Warden for the
Louisiana State Penitentiary, appeals the entry of a stay of
execution by the district court pending disposition of a petition
for writ of certiorari in the United States Supreme Court. Finding
that the district court lacked jurisdiction to enter this order, we
reverse and grant the State of Louisiana's motion to vacate the
stay.
_______________
*This matter is being decided by a quorum, 28 U.S.C. 46(d).
I

In 1985, Dobie Gillis Williams was found guilty of first
degree murder in Louisiana state court and sentenced to death.
After exhausting his state court remedies, Williams filed a
petition for writ of habeas corpus in the United States District
Court for the Western District of Louisiana. On October 9, 1996,
District Judge Little granted the writ, see Williams v. Cain, 942
F. Supp. 1088 (W.D. La. 1996), from which final decision Cain
timely appealed. On October 3, 1997, this court reversed the
judgment of the district court and reinstated Williams's death
sentence. See Williams v. Cain, 125 F.3d 269 (5th Cir. 1997).
Following an unsuccessful petition for rehearing and rehearing en
banc, the mandate issued on April 24, 1998, which gave Williams
until July 23 to file a petition for writ of certiorari in the
United States Supreme Court.
Apparently seeking to force a quick disposition, on May 14,
the State of Louisiana obtained a new execution date of June 18
from a Louisiana state court. The record before us indicates that
the new date was obtained without prior notice to Williams's
attorney, who promptly moved the state court for a renewed stay
pending disposition of an anticipated petition for writ of
certiorari. On June 3, Judge Wright of the 35th Judicial District
responded, stating that "[t]he above requested stay order is
denied. Counsel for defendant have not applied for a stay order
with the Supreme Court and have not filed an appeal with the
Supreme Court."
II
2

His state remedies again exhausted, Williams returned to
federal court. On June 8, he filed a petition for a stay of
execution in the United States District Court for the Western
District of Louisiana. On June 11, District Judge Little granted
the stay pending disposition of Williams's still unfiled petition
for writ of certiorari, relying on the relaxed jurisdictional
requirement for pro se habeas petitions enunciated in McFarland v.
Scott, 512 U.S. 849 (1994). Cain noticed his appeal of this order
exactly one day later, appending thereto a motion by the State of
Louisiana to vacate the stay.
III
Under 28 U.S.C. � 2251, it is quite clear that only "[a]
Justice or Judge of the United States before whom a habeas petition
is pending, may . . . stay a[] proceeding against the person
detained." Although the Supreme Court broadened the scope of �
2251 somewhat in McFarland, that case is inapposite to the one
before us. Contrary to the district court's broad reading,
McFarland simply held "that a capital defendant may invoke his
right to a counseled federal habeas corpus proceeding by filing a
motion requesting the appointment of habeas counsel, and that a
district court has jurisdiction to enter a stay of execution where
necessary to give effect to that statutory right." 512 U.S. at
859. Obviously, the McFarland rule, which is concerned with
effectuating the petitioner's right to file for habeas in the
district court in the first instance, has nothing to say about the
jurisdiction of that court to enter a stay pending disposition of
3

certiorari when the habeas petition has already been ruled on, the
appellate mandate has issued, and the case is no longer before the
court in any fashion. In that instance, the only reasonable
analysis is that the habeas petition is no longer pending before
the district court, and the court therefore lacks jurisdiction to
enter a stay under the clear terms of the statute. We note in
passing that this conclusion accords with the Sixth Circuit's
reading of � 2251 in Steffen v. Tate, 39 F.3d 622 (6th Cir. 1994)
(Boggs, J.) (concluding that district court had no jurisdiction to
enter stay of execution pending disposition of additional state
court remedies where defendant was represented and no habeas
petition was pending).
IV
Judge Wright called this case correctly at the outset. When
a petitioner seeks a stay of execution pending the disposition of
a writ of certiorari in the United States Supreme Court, he should
seek that stay in the Supreme Court itself.1 The district court
lacks the ability to give it under 28 U.S.C. � 2251, and we
accordingly REVERSE the order of the district court in this case,
and GRANT the State of Louisiana's motion to vacate the stay.
STAY OF EXECUTION VACATED.
1Or, in limited circumstances, from the circuit court as a
part of the disposition of his appeal. See, e.g., Maggio v.
Williams, 464 U.S. 46, 48 (1983).
4